APPEAL from a judgment of the Superior Court of the County of Gila. Gordon Farley, Judge.
Judgment reversed and case remanded with instructions.
Mr. Joe Conway, Attorney General, Mr. Thomas J. Croaff, Assistant Attorney General, Mr. Frank E. Tippett, County Attorney, and Mr. D. E. Rienhardt, Deputy County Attorney, for Appellee.
Messrs. Lewkowitz & Wein, for Appellant.
Ross, J. McAlister, C. J., and Stanford, J., concur.
[62 Ariz. 25] Art Byrd was convicted in the superior court of Gila County of the crime of rape, committed on or about July 31, 1943, upon one Noree Livingston, a female not his wife, under the age of eighteen years, to-wit, of the age of sixteen. From a sentence to the state prison of not less than five nor more than six years he has appealed.
By his assignment of error number one he questions the sufficiency of the evidence to sustain the conviction. On this point the prosecutrix testified that appellant took her for a drive at night into an out-of-the-way place, stopped his automobile and committed the act. Appellant admits that he and the prosecutrix took the drive to the country and stayed out until about 11 P. M. She says 2 A. M. the following morning, but he testified he had no sexual intercourse with the prosecutrix at that time or any other time.
Dr. T. C. Harper testified that he examined Noree Livingston a few days before the trial and he "found that her hymen had been destroyed, completely gone. Her vagina was of a size that would lead me
to believe it had been entered many times." He said the condition described could have been caused by natural sexual relations or masturbation.
We think, under the circumstances as related, the question of the veracity and truthfulness of these two witnesses was one for the jury. The evidence is quite certain that the prosecutrix had been violated, and the opportunity for the appellant to have done what he is charged with doing, and the circumstances of their staying out so late at night, and their subsequent action, was a matter for the consideration of [62 Ariz. 26] the jury. State v. Pollock, 57 Ariz. 415, 114 P.2d 249.
Appellant seems to rely for comfort upon what we said in Reidhead v. State, 31 Ariz. 70, 250 P. 366. The information in that case charged the rape was committed by force and violence, and there was no pretense that the will of the prosecutrix was overcome by force or violence of any kind. We held that the conviction upon evidence that failed to show resistance to the utmost of the prosecutrix's ability, she being over eighteen years old, would not sustain a conviction. In that connection, we used the following cautionary language:
"And when a verdict of guilty is returned on the evidence of the prosecutrix alone, her story must be reasonable, consistent, and not inherently impossible or improbable to a degree that would make it ...